Robinson v Nagel

Land and Environment Court (NSW)|2021-04-12

Background to the application

During the period that Susan and Douglas Robinson ('the applicants') have lived at their Balgowlah Heights property, they have seen the southward views from the rear of their dwelling diminished by changes in the surrounding landscape. They have applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders to prune or remove bamboo that grows on the adjoining property belonging to Elizabeth and Anthony Nagel ('the respondents').
Specifically, the Robinsons ask that the bamboo be pruned and maintained at a height of no more than 2.5 metres. Alternatively, they ask that the bamboo be removed and that the height of any replacement planting be restricted.
The Nagels dispute that such orders can be made. They are of the opinion that key jurisdictional tests in the Trees Act are not met. However, if the Court finds that those tests are met, such that orders will be made to interfere with the bamboo, they ask that it be pruned only once, to a suitable height.

Framework for this decision

For the Court to make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

The trees (there must be at least two) must be planted so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act);
The applicants must make reasonable effort to reach agreement with the tree owners (s 14E(1));
The trees must be severely obstructing either sunlight to a window of the applicant's dwelling, or a view from the dwelling (s 14E(2)(a)); and
The obstruction is such that the applicant's interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)). To determine this, critical issues at s 14F in this matter include privacy, amenity and the response of bamboo to pruning.

If orders are made, they might be those sought by the applicants, or they might be such orders at s 14D of the Trees Act as the Court otherwise sees fit to remedy, restrain or prevent a (in this matter) severe view obstruction.

The hearing

The hearing took place onsite, allowing for observations of the bamboo, both gardens, views and issues of privacy and amenity. The parties had each obtained a report from an arborist: Jacki Brown of New Leaf Arboriculture, for the applicants, and Kyle Hill of Aura Tree Services, for the respondents. Ms Brown also gave oral evidence at the hearing.

The bamboo is planted to form a hedge

From the Robinsons' dwelling they see, above the fence on their rear boundary (which is also the Nagels' rear boundary), the tops of bamboo plants that form a row on the other side of the fence. To them, it is a hedge.
The jurisdiction of Pt 2A of the Trees Act is first restricted at s 14A: 14A Application of Part (1) This Part applies only to groups of 2 or more trees that: (a) are planted (whether in the ground or otherwise) so as to form a hedge, and (b) rise to a height of at least 2.5 metres (above existing ground level). (2) …
For the purposes of the Trees Act, the Trees (Disputes Between Neighbours) Regulation 2019, reg 4 prescribes bamboo to be included within the definition of 'tree'. The bamboo is more than 2.5 metres tall. The Nagels submitted that it is 2.4-4.0 metres in height. I observed that it was more than 5 metres tall in places.
The Nagels dispute that the bamboo plants are planted so as to form a hedge. The bamboo was planted in four stages (numbered from the west along their rear boundary): sections 1 and 3 in 2013; section 2 (between 1 and 3) in 2016, and section 4 in 2017. The first plantings apparently each came from a 300mm pot, while section 4 was planted from four smaller pots of bamboo. The four plantings now form a single row of bamboo approximately 6.5 metres long.
Ms Sims, Counsel for the Nagels, referred the Court to Chief Justice Preston's analysis of s 14A(1) in Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 ('Johnson'). At [43], his Honour found: "Thirdly, the Johnsons' submission fails to address the fundamental factual finding of the Commissioner, which prevented the Turpentine from being able to be described as being planted so as to form a hedge. The Commissioner found that the Turpentine was perhaps 60 or even 70 years old, while the palms were perhaps 15 or 20 years old. As a consequence, the Turpentine, even if it were to have been planted, was planted some 45 to 55 years before the palms were planted and hence could not have been planted so as to form a hedge with the palms (paras 28 and 30). If the Turpentine cannot be said to be planted so as to form a hedge, it does not satisfy the requirement in s 14A(1)(a) of the Trees Act. It cannot later acquire the status of being planted so as to form a hedge by the palms being planted to form a hedge in proximity to the Turpentine."
Each case that comes before the Court has its own unique set of circumstances. In Johnson, the Turpentine was a single tree, a feature in the landscape, an indigenous tree. It was not planted for screening purposes. It was not planted so as to form a hedge. Here we have, at the first planting, two clumps (sections 1 and 3) of bamboo planted within a few metres of each other. It is possible that they might have formed a screen even without the later planting of section 2. Ms Sims submitted that the Nagels planted the bamboo to screen gaps created in plantings on the Robinsons' side of the fence. Both original clumps have grown to form a dense screen of foliage, hedge-like in nature.
Ms Sims also referred the Court to Wood v Barnes [2017] NSWLEC 1106, where at [15] Acting Commissioner Fakes found: "In addition, I have determined on a number of occasions that any one 'hedge' must be planted in a single event (see Coleman & anor v Leddy & anor [2013] NSWLEC 1094, Catlin v King & anor [2016] NSWLEC 1603)."
On my reading, s 14A(1) does not demand that all trees in a hedge be planted at the same time, only that they are planted to form a hedge. As Preston CJ concluded in Johnson, the intent at the time of planting, and the result in the present, must be for the plants to form a hedge. Planting trees at different times does not prevent such a finding, for instance in Moss v Taylor; Morgan v Taylor; Toisuta v Taylor; Slim v Taylor [2019] NSWLEC 1215 at [14], [15]: "[14] Some of the planting events of the Murraya were apparently separated over time, but the result, in appearance, is a single hedge, despite some variation in height along the hedge. [15] Plants added later to extend one end of an existing hedge, or to fill gaps within it, are planted so as to form a hedge: the same hedge as formed by the existing plants. This might be the intention at the time of planting, as it appears to be here, and may persist to the present, as is certainly the case here. Despite the various planting times and the changes in height of the Murraya along the Taylors' boundary, the plants form a continuous row along the boundary and I find they form a single hedge ('the hedge'). Nevertheless, the various sections impact differently each of the four townhouses."
I am satisfied that sections 1 and 3 of the bamboo were planted to form a hedge. Planting section 2, three years later, between the earlier two sections, was also to provide screening, and filled a gap that remained between sections 1 and 3, thereby forming a hedge made of all three sections. Another year later, planting section 4 lengthened the hedge to the east, so also formed a hedge. Finally, the result is that all four plantings, in the present, form a single hedge.
Ms Sims asked the Court to consider the lack of pruning of the bamboo. Had the Nagels wanted to grow a hedge, she reasoned, they would have trimmed it for a more formal appearance.
The word 'hedge' is not defined in the Trees Act, but its meaning has been discussed in many decisions, including Wisdom v Payn [2011] NSWLEC 1012, where Senior Commissioner Moore and Acting Commissioner Hewett found at [45]: "We reject this proposition. We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge." While not all screening plantings along boundaries are hedges, many are. To me, and I imagine to most people, this bamboo appears to be a hedge.
As a result of the above reasoning, Pt 2A of the Trees Act applies to the bamboo. The Nagels' land, on which the bamboo grows, adjoins the Robinsons' land, being a requirement at s 14B.

The applicants made reasonable effort

The Robinsons asked the Nagels to prune the bamboo prior to making their application. The Nagels have been steadfast in their refusal to accommodate the Robinsons' request. In preparing for the hearing, the Robinsons and the Nagels have each obtained arboricultural evidence. I am satisfied that the applicants' efforts were reasonable, such that the Court would not be prevented making orders at s 14E(1).

The trees severely obstruct a view from the applicants' dwelling

The Court's powers to make orders under Pt 2A of the Trees Act are restricted at s 14E(2) (with my emphasis in bold): 14E Matters of which Court must be satisfied before making an order (1) … (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned: (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or (ii) are severely obstructing a view from a dwelling situated on the applicant's land, and (b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part. Firstly, then, I must be satisfied that the Nagels' bamboo is severely obstructing a view from the Robinsons' dwelling (s 14E(2)(a)(ii)).
The rear of the Robinsons' dwelling faces south, where the land slopes gently down to Middle Harbour. No view of any significance is available from their ground floor, but from the first floor the southward view takes in the water of Middle Harbour across to Balmoral Beach, making for a very pleasant view. While the south side of the Robinsons' first floor includes bedrooms, in the centre is a living area and it is from here that they claim the bamboo obstructs their view.
Part of the view, further to the east, has been obscured by the second storey addition to the Nagels' dwelling. Other elements in the landscape, at some distance from the Robinsons' property, obscure minor parts of the view. Nevertheless, having observed the view, I accept the proposition posited by Ms Hammond, Counsel for the Robinsons, that the most valued view is the expansive outlook to the west of the Nagels' dwelling, including water and beach views. These elements rank highly in the view assessment principle set out in Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 ('Tenacity'), where Senior Commissioner Roseth wrote at [26]: "The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured."
In my experience, Tenacity's first step is sometimes interpreted by practitioners as implying that a view without iconic features - perhaps a view of parkland, or the suburban landscape - does not warrant consideration under Pt 2A of the Trees Act. I do not accept that, as any view might be important to an applicant. Rather, this first step of the view-sharing principle assists with assessing the potential loss of a view, especially the loss of parts of an overall view.
Here, the bamboo has grown up into the most valued parts of the Robinsons' view, so that it obstructs more than half of the available water and beach views. Prior to the hearing, the Nagels tied together some of the bamboo stems, creating narrow gaps in the screen provided by their upper parts. Nevertheless, until recently the bamboo's screening effect was continuous, and with further growth it is likely to be so again soon. Considering the value of the landscape elements obstructed by the bamboo, when compared with the remaining parts of the view, I find the obstruction is severe. Using the terms within the Tenacity principle, the impacts to the Robinsons' view is more than 'moderate' but less than 'devastating'. Similar to the finding in Steber v Job [2019] NSWLEC 1308, this ongoing obstruction, even if reduced temporarily by the Nagels' recent actions, corresponds to the use of the present tense in s 14E(2)(a)(ii) of the Trees Act. As a result, I am satisfied that the bamboo is severely obstructing a view from the Robinsons' dwelling.

Balancing relevant issues

The remaining jurisdictional test at s 14E(2)(b) (see above at [20]) requires the Court to weigh in the balance the impacts to the applicants resulting from the view obstruction, against any benefits of the trees to the respondents, the community and the environment. I must be satisfied that the advantages to the applicants of making orders outweigh any reasons to avoid interfering with the bamboo. I have considered matters at s 14F of the Trees Act, and discuss relevant ones below.

Location

The bamboo is planted along the Nagel's rear boundary fence, less than half a metre from the Robinsons' land. It is planted in a narrow space between the boundary fence and tall lattice screening on the Nagels' land running parallel to the fence.

Timing

The hedge has been planted and grown into the Robinsons' principal view during the period they have occupied their property.

Permit requirements

Removing or pruning the bamboo would not require consent from Northern Beaches Council; nor would this require any other consent. The bamboo was not part of any condition in the Nagels' development consent for changes to their property.

Social and environmental benefits

While all trees bring some benefits, this hedge of bamboo provides little in the way of benefits to the local environment and to the local community. Its contribution to public amenity is minor at best. It is an introduced species that, in this situation, provides no significant habitat or other environmental benefits.

Respondents' amenity and landscape

The Nagels submitted that the bamboo is an important part of their garden landscape. I observed that most of the bamboo is not readily visible, as it is hidden by the Nagels' lattice screen. The top of the bamboo can be seen from their garden and dwelling above the lattice. This is the same part of the bamboo that obstructs the Robinsons' view. The Nagels have other vegetation that contributes most of the greening and visual softening to their landscape. Any minor benefits of the bamboo to the Nagels' landscape are, in my mind, outweighed by the bamboo's impact on the Robinsons' view. Pruning or removing the bamboo would not significantly affect the Nagels' landscape.

Privacy

The Nagels submitted that the bamboo, where it reaches above the lattice, is critical for maintaining privacy between the two dwellings. The fence and lattice appear to provide sufficient screening to limit any overlooking onto their pool and garden. They took the Court to the upper level of their dwelling, where two windowed rooms face the Robinsons' dwelling. One room, best described as a study, contained an exercise bike; the other room is the Nagels' ensuite. Both have shutters that can be closed, and a screen is attached outside the ensuite. The Nagels pointed out bedrooms of the Robinsons' dwelling. They expressed concern about being able to see into those rooms.
The Robinsons' dwelling is more than 30 metres from the Nagels'. Considering this distance, along with the nature of the Nagels' rooms and the extent of existing screening, I do not see any significant privacy issue for them. The Robinsons expressed no concerns about their own privacy or the Nagels being able to see to their dwelling. If the latter issue bothers the Nagels, they are not obliged to look that way.
The Nagels are also bothered by lights on the Robinsons' rear deck. Again, due to the distance between these dwellings, this issue seems relatively minor.
Privacy was perhaps the most important issue to the Nagels, but I find that pruning or removing the bamboo would not significantly impact anybody's privacy.

Other features obstructing the view

Ms Sims submitted that other landscape features obstruct parts of the Robinsons' view, including houses and other vegetation. She pointed out two trees on a property adjacent to the Nagels' property that will grow into the view. I observed that parts of the view are obstructed by such features, but noted that the hedge obstructs the most valued part of the Robinsons' view. It is something they might have some control over, through this application, whereas other landscape elements are beyond their control.

Nature of the hedge

The bamboo is evergreen, providing a dense screen throughout the year. It grows quickly. Ms Brown noted that, in the month between her most recent inspection and the hearing, shoots at the top of the hedge had grown half a metre. She thought the hedge would reach 8 metres or more in height.

Impacts of pruning the bamboo

If the bamboo is pruned to restore the view, the parties disagree as to whether this would require ongoing pruning at regular intervals, or pruning once only. Bamboo regrows readily, as anyone who has tried to remove it completely knows. Ms Brown was of the opinion that the bamboo would require regular pruning to maintain it at a lower height. Mr Hill wrote that, because regeneration of bamboo happens from rhizomes below ground, pruning existing shoots would prevent them growing any taller. He concluded, then, that "…the bamboo will only need to be pruned once to ensure height is maintained." Having seen many hedges of the same bamboo species grow quickly past their pruned height, I do not accept Mr Hill's statement to be accurate.
Pruning the bamboo once, to lattice height, would restore the Robinsons' view. Preventing the obstruction recurring would require regular pruning. The bamboo is not easy to access, being in a narrow gap between the lattice screen and the fence. To me, the burden to the Nagels of ongoing pruning orders outweighs any loss to them that might result from removing the bamboo. Ms Sims, arguing for only a single pruning event if any pruning were to be ordered, stressed that ongoing pruning orders would be burdensome for the respondents. At s 14D of the Trees Act, the Court can make orders as it sees fit to remedy, restrain or prevent a severe obstruction of the applicants' view. I find that removing the bamboo would provide the most efficient remedy and prevention of the view obstruction, and the greatest potential for finally resolving the dispute between these neighbours.

Steps taken by the parties

The applicants have maintained vegetation on their side of the fence at a height that suits them. The respondents argued that their action of planting the bamboo directly resulted from the applicants' pruning or removal of vegetation near their common boundary. I do not accept that the view obstruction results from the applicants' actions. It is only the respondents who are responsible for planting the bamboo and for its current height.

The affected part of the dwelling

The Robinsons' first-floor living room, from where their view is most impacted, is an area where family and visitors might reasonably spend time. Impacts to views from here affect their enjoyment of their property more significantly than if the view was lost from a utility room such as a laundry, or other rooms of less frequent use.

Conclusion

The bamboo growing on the Nagels' property is planted to form a hedge. It severely obstructs a view from the Robinsons' dwelling. Having weighed the relevant matters set out above, I find it is appropriate to make orders to remedy and prevent the view obstruction. Considering the impacts of any orders on the parties, and with the aim of providing final resolution to this dispute, I have concluded that removal of the bamboo should be ordered. I will also include an order restricting the height of any new hedge planting along the common boundary.

Orders

As a result of the foregoing, the Court orders that: 1. The application is granted. 2. Within 30 days of the date of these orders the respondents are to engage a suitably experienced landscape contractor, with all appropriate insurances, to remove all bamboo growing along their rear boundary. 3. The respondents are then to take any steps necessary to prevent the bamboo regrowing. 4. The respondents are to give the applicants at least 2 days' notice of the works in Order (2). 5. The applicants are to allow any access required to their property for the purpose of cleaning up debris resulting from Order (2). 6. Any further hedge planting along the respondents' rear boundary is to be of a species that grows to no more than 2 metres in height at maturity. 7. The exhibits are returned, except for Exhibits A, B, E and 2. ……………………………….

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 June 2021

(2012) 190 LGERA 334

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